How the Proposed National Reciprocity Bill will Impact Pennsylvania Law Abiding Gun Owners

By: Gil Ambler

Edited: Justin McShane and Katy McShane

[Editor’s note: as of the date of this post, the National Handgun Reciprocity Bill of 2017 has been proposed. You can read it’s text here: https://hudson.house.gov/uploads/Concealed%20Carry%20Reciprocity%20Act%20of%202017.pdf as with all proposed bills, they are subject to amendment and change. It will be very likely that a great deal of poison pill amendments will be added by those who are anti-gun. So, stay tuned.]

The proposed National Reciprocity bill, by Rep. Hudson (N.C.) is in many ways more than we could have hoped for.  National reciprocity has long been talked about as the inherent unfairness of the current system seems overwhelming. The current system allows a specifically enumerated Constitutional right “to bear arms” to be curtailed when crossing into another state, and yet we are able enjoy reciprocity nationwide on privileges such as driving.  Those who do currently carry when traveling face a litany of problems and concerns while remaining extremely limited on places they can lawfully visit while carrying a weapon.

The current system has holders of concealed weapon permits or licenses able to legally carry only in states that have a reciprocity agreement with their own state.  These state by state agreements are done through the attorney generals office’s in the different states. They are subject to constant change as states rescind agreements with other states to reflect the transient notions of what is currently politically desirable for each individual state.  Even when traveling to a state that allows reciprocity with your home state, you may wind up having to travel through states which do not afford you the ability to carry your weapon.  Under the current system, travel through states that do not recognize your right to carry must occur under the Federal Safe Passage Act found at 18 U.S.C. §926(a).  This provision allows for continuous travel through a state that does not recognize your right, provided your weapon is stored in a hard sided and locked case, completely unloaded, and stored in the trunk of your vehicle, or the furthest portion of the vehicle from the occupants in vehicles without a trunk.  Continuous travel means passing through the state without stopping. In some states, this can be so strictly construed that it is unsafe even to stop for gas. This is obviously an extremely restrictive and complicated way to travel with your weapon and does not afford you the ability to use the weapon in those states that require it locked up and unloaded.  In addition, this safe passage act is treated as an affirmative defense in some states, meaning that if you are caught traveling through the state with a weapon locked up in the 926A manner, you can still be arrested and then forced to prove at trial that you were complying with the exception!  This proposal shifts the burden of proof that there has been a violation to the state requiring them to prove first that you violated the law, rather than allowing states to arrest people, and requiring the individual to prove their innocence by showing that they complied.

As a threshold it is worth mentioning that the proposed bill applies only to concealed, not open carry.  Additionally, the proposal will not change any current laws regarding persons currently unable to possess firearms because of disability or other loss of rights to carry firearms. The proposal will also not allow carry in school zones or other places off limits to carry under 18 U.S.C. §922(q) or otherwise modify the particular areas that a state has designated as a gun free zone.  These are not the sort of things that most gun owners have an issue with.

Representative Hudson’s bill does proposes fairly simple fixes many issues that do currently affect law abiding gun owners. The concern with a national carry scheme in the past had been that giving up control of carry laws to the federal government could open the door for a restrictive and hard to attain “national license.”  The proposed bill seemingly avoids these pitfalls by leaving the licensing to the states, and being a fairly straightforward reciprocity statute.  Each state would still grant their own license but would simply be forced to recognize the license of any other state. The license will be honored as long as the person carrying the weapon also had a valid government issued photo identification.  The proposal only extends to states that allow their residents to apply for a license or permit to conceal carry.  All 50 states currently “allow” such an application and would therefore be subject to the proposals of the bill, even though many of these states in practice do not grant licenses to those that apply.  The fact that many “may issue” states allow application for licenses but in practice severely limit grant of licenses is one of the pitfalls of the current system that the proposal addresses.  It is worth noting a major concern with the bill is that some states may cease to allow application for a concealed carry license and ban concealed carry without a license to avoid being subject to the provisions of the bill if passed.  Additionally, it is somewhat unclear whether the bill would apply to United States territories as the proposed language specifies “states, and political subdivisions thereof,” but does not address whether or how it would apply to territories.  Even if it applied to a territory such as Guam, which has a “may issue” provision, it seems it would not apply to places like the Northern Mariana Islands, which currently has no provision allowing concealed carry and does not allow any application for a permit or license to carry.

The good news is that in addition to the valid photo ID, the proposed bill only requires “a valid license or permit which is issued pursuant to the law of a state and which permits the person to carry a concealed firearm.”  This presumably means that even if your home state makes it essentially or de facto impossible to attain a license to carry a concealed weapon, as long as an application process exists in that state, and as long as you attain a license or permit to carry a concealed weapon from “a” state, even another state (think non-resident Utah), you can carry in a state where such a permitting or licensing process exists, including your home state. This is true even if you cannot practically attain a license in your home state.  This could be major good news to our neighbors to the south referring to Maryland and to the East referring to New Jersey. States that currently are extremely restrictive but which do allow application for a concealed carry permit or license, such as New Jersey, may be forced to allow their residents to lawfully carry under this proposed bill.

Another way that the bill helps out gun owners is through limiting the ability of a state to arrest people for carrying certain sorts of ammunition or magazines, as the proposal included under the definition of what someone may lawfully carry under its provision in the way it defines what is a “handgun.” The proposal continues to define a “handgun” as the weapon, and both the magazine and ammunition inserted inside the weapon or magazine.  Arguably, this means that even in a state like New Jersey, which generally does not allow hollow point ammunition, the hollow point ammunition carried in your magazines would be legal through this addition to federal law.

The proposal does reserve for the states the right to make laws about, and limit the carry of concealed weapons on private, state and local government property, including, bases, parks, installations, and buildings.  On the other hand, the proposal specifically allows carry on any property within a state that is open to the public, and is a part of the National Park system, National Wildlife Refuge system, land controlled by the Bureau of Land Management, and land administered and managed by either the Army Corps of Engineers or administered and managed by the Bureau of Reclamation.

The proposed bill also recognizes the move of many states toward “constitutional carry,” or schemes that allow individuals to carry a weapon without any license.  The proposal addresses these constitutional carry states by allowing carry by anyone who has a valid photo identification who is “entitled” to carry a concealed weapon in the state in which they reside.

All in all, if this bill were to be passed, and made into law, it would be a huge victory for the rights of gun owners, and would be a welcome change from the current and arguably unconstitutional scheme with which we currently operate.  While traditionally gun rights supporters may have reservations about giving up control to the federal government, this may be a good avenue to keep individual states from trampling rights granted in the Second Amendment, which should be applicable to the states through the due process provisions contained in the Fourteenth Amendment.